Ramesh Chandra Mahadik vs Dr. Dilip Mahadik and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution is directed against the order dated 16.11.2009 passed in Civil Suit No. 73A/09. By the said order the Court below had decided the preliminary issue No. 2, whether there was a misjoinder of parties in the civil suit and if yes, its effect?. The plaintiff filed a suit for partition and permanent injunction. The pedigree is shown in para 1 of the plaint Annexure P/2. Admittedly, the plaintiff and the defendants are the legal representatives of late Chandrasen Rao Mahadik, who passed away on 30.01.1957. On that basis, partition was prayed for. The written statement was filed by the defendants No. 1 & 2 separately. The trial Court framed issue on 22.09.2009. An application under Order 14 Rule 2 C.P.C. was filed by the plaintiff praying for deciding the issue No. 2 as preliminary issue. Issue was decided by Court below by impugned order, whereby it was held that the sisters are necessary parties. The singular attack on this application is on the ground that the amendment in section 6 of Hindu Succession Act is not retrospective in nature.

Shri V.K. Bhardwaj, Learned Sr. counsel for the petitioner, relied on certain judgments on this aspect.

Per Contra, Shri Avinash Karpe learned counsel for the respondent No. 1 & 2 supported the order passed by the Court below

I have heard learned counsel for the parties and perused the record.

This is not in dispute between the parties that Shri Chandrasen Rao Mahadik expired on 30.01.1957. The trial Court had taken into account the judgment of Apex Court reported in Sheela Devi and Others Vs. Lal Chand and Another, The trial Court even noted that in the said judgment the Apex Court opined that the date of succession opens on relevant date and where succession opens before the Amending Act of 2005, the permission cannot be allowed.

In the considered opinion of this Court, the law is settled in Sheela Devi (supra) that if succession opens before the insertion of Amendment Act, the said Act cannot be made applicable retrospectively. However, despite quoting the binding judgment on the subject, the conclusion arrived at by the Court below runs contrary to the said judgment. Admittedly, in the present case, the succession opened much before the Amending Act came into being. This Amendment Act could not have been made applicable with retrospective affect. Thus, the Court below has passed the order which runs contrary to the settled legal position. This order cannot be permitted to stand. Resultantly, the order dated 16.11.2009 is set aside. Petition is allowed. No costs.